Former Merrill Lynch Executive James A. Brown Files Supplemental Motion for New Trial

HOUSTON, July 12 /PRNewswire/ -- Defense counsel for James A. Brown, former head of the Merrill Lynch Strategic Asset Lease and Finance group, filed a Supplemental Memorandum late Friday evening in support of his motion for a new trial in the Southern District of Texas, Houston Division.  

The defense charges that Enron Task Force prosecutors knowingly and deliberately concealed evidence that would have vindicated Mr. Brown of any wrong doing.  Mr. Brown was convicted of perjury and conspiracy because of his grand jury testimony regarding the Merrill Lynch purchase of a minority interest in barges owned by Enron.  The barges were equipped with electrical power generators to be used as emergency electrical power to Nigeria.  Mr. Brown served a year in prison.

Federal prosecutors originally filed charges of mail and wire fraud for theft of "honest services."  A conviction based on "honest services" law (18 U.S.C. Section 1346) was recently overturned by the U.S. Supreme Court (Skilling vs. U.S.)  Writing for the Court, Justice Ruth Bader Ginsburg warned that prosecutors and judges have overstepped their authority by unlawfully expanding the scope of theft of honest services.   Brown's honest services convictions were reversed several years ago by the Fifth Circuit.  Now prosecutors seek to try him a second time on the same indictment merely redacted of the phrase "honest services."

Since that reversal and in preparation for the second prosecution, appellate counsel for Mr. Brown have uncovered testimony and handwritten notes from witnesses proving that prosecutors deliberately concealed evidence from the judge and defense that would have exonerated Mr. Brown on all charges.  Mr. Brown's defense team has charged the government's prosecutors with violation of the Supreme Court's "Brady Rule."  

The Brady Rule requires prosecutors to turn over to defendants any evidence that might help prove them innocent or show the biases and criminal records of witnesses testifying against them. The Supreme Court ruled that if a prosecutor improperly withholds evidence that contradicts its case, a conviction can be reversed if the verdict would have been different had that material been known at the trial.

Sidney Powell, appellate counsel for Mr. Brown, said, "This is the same kind of misconduct for which the government confessed error in the Stevens prosecution, and they should do the same thing here.  Jim Brown should never have been convicted.  He committed no crime, and a jury would have found him not guilty if the defense had been given the exculpatory evidence that the Task Force attorneys concealed."  Federal Judge Emmett Sullivan has ordered a criminal investigation of prosecutors who are accused of deliberately withholding exculpatory evidence in U.S. Senator Ted Stevens' trial.  

Mr. Brown's defense team has uncovered evidence that prosecutors "concealed first-hand evidence...(that) contradicts the government's hearsay-only case."  The motion declares that the "false testimony of the Task Force's hearsay witnesses is alone sufficient to entitle Brown to a new trial."  

Mr. Brown's defense team filed a motion on Friday, July 9, in Federal Judge Ewing Werlein's court, saying that Mr. Brown is entitled to discovery, an evidentiary hearing and a dismissal of all pending charges.  Moreover, the petition declares that "as in Stevens, the Department of Justice should confess error in its Brady violations, move to vacate Brown's wrongful convictions and dismiss all charges."  

A copy of the filing can be found at www.federalappeals.com.  (Cr. No. H-03-363-2)

SOURCE James A. Brown